Five Songs on the Meaning of Christmas

1. Last Christmas

Christmas is about nostaglia and comtemplation - its "Last Christmas" everytime - whether your seriously upset like George is below, or in more jovial mood like these boys on K Road.





2. I Wish It Was Christmas Today

Christmas is about expectation - like that Julian Casablancas will return to his old form and stomp around stage like Joey Ramones cooler rich cousin (who can actually pull off the "sunglasses inside" look without looking like a douche).

I Wish It Was Christmas Today from Just on Vimeo.

3. Merry Christmas (I Don't Want to Fight Tonight)

Christmas is about family - i.e. teasing/annoying and playing nice for the photos.




4. Christmas (Baby please come home)

Christmas - should have something for the old people (that is NOT Feliz Fuckin Navidad...)



5. Christmas Card From a Hooker in Minneplais

Christmas is about telling stories...



BONUS - Christmas in Harlem

Christmas is about Kanye?? Well everything's always about Kanye...

A Must for the Xmas List for All Cricketers - Young & Old!

Product Photo (above)
(c) Alaister Moughan 2011

Box Reads

Philip Hughes - Slip Catching Cradle

Guaranteed to make your slip catching better - just ask GUPPY!

Don't take our word for it - ask the pros: "Same place, every time amazing consistency, great practice even in game conditions; the best" Martin Guptill NZ Cricketer

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Disclaimer
Component "Chris Martin Catching Feeder" - Sold Separetly

The Curious Case Law of Kanye Weset

You may be familiar with the Kanye West on the dance floor, or maybe in the gossip columns, but more recently Mr West has been involved in a different type of spectacle closer to Boston Law than the MTV Awards Show : court room drama.

In Vincent Peters v Kanye West, Roc-A-Fella Records, LLC and UMG Recordings, INC Mr West’s hit song “Stronger” was subject to a claim of copyright infringement. The plaintiff Vincent Peters or “Vince P” as he was known professionally disputed that Mr West had infringed the copyright of his own song also called “Stronger.” Vince P was a songwriter performer, who solicited some interest from Interscope records. As a result of this interest Vince P went out seeking an executive producer getting in contact with John Murphy. Mr Murphy happened to be the executive producer of Kanye West. Vince P alleged that he sent various CDs, which contained his song “Stronger”, and based on this access, on top of the public access to his song available on his MySpace page, alleged that Mr West had copied part’s of his song in writing his own song Stronger. (The facts are disputed between the parties).

Vince P claim had failed at District Court level, and has then became subjected to motion to dismiss at the Court of Appeal. The Honourable Judge Virgina Kendall stated that to succeed in his claim Vince P had to prove that he had:

(1) Ownership of a valid copyright; and

(2) unauthorised copying of constituent elements of the work that are original had ocurred.

In the aspect of originality, Vince P’s claim failed miserably. The concept of originality is a fundamental platform of copyright law. The concept contains two components whether the copyright work was independently produced, and whether the work was born as a result of some degree of labour, skill or judgement. The former component is often described in terms of the ‘sweat of the brow’ metaphor, where an author only needs to input a reasonable amount of labour and skill, rather than any creative innovation to gain copyright protection.

The plaintiff admitted that individually, each constituent element he argued was unoriginal, but that when combined the elements were substantially similar to Kanye West’s song. These constituent elements we are follows:

1. Song Title “Stronger”

2. Reference to “Kate Moss”

3. Selected Lyrics in the “Hook”

Individually the court confirmed that each alone, lacked “a minimum level of creativity and do not qualify for copyright protection.” Citing well settled authority it held that song titles by themselves does not earn copyright protection.

Each song had took the “creative choice of referring to Kate Moss” in their lyrics. Vince P’s song included the line “Trying to get a model chick like Kate Moss”, while Kanye’s name drop was “You could be my black Kate Moss.” The Court quickly declared such creative use of name did not gain any copyright protection, with the Honourable ….taking this point to the extreme in musing that “[i]ndeed, the name Kate Moss would not even be copyrightable by Ms Moss herself.”

The third constituent claim was the most arguable claim, however it also failed. The similar lyrics were as follows:

Vince P Stronger (2006)
What don’t kill me make me stronger
The more I blow up the more you wronger
You coped my CD you can feel my hunger
The wait is over couldn’t wait no longer

Kanye West Stronger (2007)
N- n- now th- that don’t kill me can only make me stronger
I need you to hurry up now cause I can’t wait much longer
I know I got to be right now cause I can’t get much wronger
Man I’ve been waitin’ all night now that’s how long I’ve been on you

One of the main defects of the claim was the fact that both use the 120 year old proverb “what don’t kill me make me stronger” which was no longer under copyright, and subject to the public domain. Moreover the Court, or maybe its officers, seemed to have extensively hip musical tastes to bring up the fact that “variations of this clichéd phrase” had been used by other artists such as Jay Z, 2Pac, Maxim and Megadeath.

The Court strongly rejected the argument raised by the plaintiff, that these unoriginal elements when combined could form the basis of an infringement claim: “Simply put, a plaintiff cannot select a few non-copyrightable elements contained in his song, claim a monopoly of their use, and prevent others from employing similar un-protectable individual words and phrases in their works.” The lack of any musical similarities, made any comparison of substantial similarity of a copyright infringement claim was not necessary (although the courts discussed this issue regarless and found no substantial similarity.)

This case not only provides an entertaining avenue for Honourable Judges to judicially refer to Jay Z, 2Pac and Heezy, but highlights some interesting copyright points. Ignoring any potential value in terms precedent or doctrine (US Copyright Cases are typically not as influential as those from Commonwealth jurisdictions), Vincent does provides three interesting observations.

The discussion of the fundamental platform of originality and the examples given of song titles/names/vague choruses containing common phrases illustrate the important role this concept has. The concept is often provides a way of separating the purpose of copyright law, with other intellectual property law. For example the name Kate Moss is may be able to be trademarked, however it does not gain protection in copyright which illustrates the often overlooked distinct purposes of these two intellectual property regimes: copyright is intended to encourage creativity/authorship rather than protect goodwill and economic interests, the realm of trade marks.

Another interesting observation is how something such as an 800 year old phrase, available in the public domain for use, can inspire such creativity. With copyright cases typically containing possessive language of authorship/ownership in terms of protection, it is often easy to ignore the creativity that existing works, available in the public domain inspire. As easily as one can claim that one artist was “stealing” from another by copying parts of their works, so where both the plaintiff and defendant borrowed from this well-known saying. It illustrates the value of the cultural public domain, which supplies valuable works and more importantly associations on which others can build vastly different creative works.

If also demonstrates that copyright infringement cases are seldom straightforward. Although at first glance, there seems to be cosmetic similarities between the two songs, once analysed legally the plaintiffs case was exposed as lacking any real merit. In the modern era of presumed guilt under Copyright Legislation such as s92A, this raises some real concerns about the effectiveness and fairness of presumed guilt, where the copying which was occurred is simply literal reproduction or “file sharing””. It’s a point that has often been lost in the s92A debate – but I guess “You Can’t Tell Them Nothing”

‘There’s Something In The Water’ – Brooke Frazier v Odd Future

Two days, two seemingly unrelated events posing one question – Why is New Zealand music always so amiable so innocent? As everyone’s favourite singing All Blacks Daughter, Brooke Frazier says, maybe there’s something in the water?

On the first day we had the New Zealand Music Awards, sorry my apologies “the Vodafone New Zealand Music Awards” , several tequila sunrises later, and onto the second day we had the removal of Odd Future at Big Day Out because of complaints from Wellington man Calum Bennachie over alleged homophobic lyrics.

Odd Future are offensive, let’s agree on that. It’s part of their shtick. Their oeuvre is characterised by an “fart in an elevator” vibe – unpleasant to most, but some enjoy the ride. Regards of whether you like your music or not, their lyrics which use homophobic terms , and include fantisised accounts of murdering and raping young women can, and do cause offense.

Despite this potential the group has had widespread mainstream media exposure, even performing on an MTV awards show. In contrast, consider the most provocative scene of the VNZMA’s was Tiki Tane singing “Freedom to Sing” accompanied with dancing (not real) uniformed police officers.



This dancing police are a (cheeky) reference to the singer’s recent incidents with the police. When comparing these two performances the audience reactions from Tiki relative to Odd Future the reaction is a mere whimper. (Better link here)



Tiki is not to blame,regardless of the fact that “Freedom to Sing” sounds like it was written by an3rd form Social Studies student; good on him for flirting with the provocative. In fact, he’s one of the more most interesting intriguing artists in the “Vodafone New Zealand Music Scene.”

What it really demonstrates is that once an artist becomes “successful” in New Zealand they wrapped with a blanket of patriotic support from the media which doesn't generally accept or foster shocking behaviour or expression. To garner such level of support being a shocking, offensive or even angry artists appears to be a huge obstacle. In mainstream New Zealand music such artists are nowhere to be seen.

No doubt the New Zealand music scene has benefited and grown from extensive government funding. Clearly, as a music fan, this is a good thing. However, in this sphere it has birthed of this blanket patriotism.

When an artist joins under the umbrella of “kiwi-music” they become a must-like, “champion” in of New Zealand music. There fan support becomes attune to that of a successful sports team. One who actually benefited from this scheme is Ruben Neilson from the Mint Chicks. Although I’m sure appreciative of the support given to further his artistic endeavours Ruben commented on this phenomena in a blog post on the Mint Chicks Myspace:

“Is the success of an individual artist or an individual song or an individual album the success of the country that individual comes from? When an artist does something which resonates with people, should we shout "another victory for NZ music"? This is how a large proportion of the public has somehow been programmed to react to successes in the music industry here. Which is a good thing initially, because people used to have a certain distain for music made here on principle. However, NZ music is still ghettoised in this era of "Yay NZ Music" as it is still separated from music made "overseas". It's "patronised", in a multi-faceted definition of the term. For some reason, the average New Zealand music fan has been lead to believe that "New Zealand Music" is a genre. This is wrong. Why is it so widely believed? How many people in this country love Pitchshifter but no other Drum n bass? How many love Fat Freddy's Drop but no other dub? Scribe but no other hip hop? How many people would include Shihad, Fat Freddy's Drop, and Savage as their favourite acts? Feeling that somehow they've rattled off a list as obvious as The Sex Pistols, the Clash and the Buzzcocks. Or Eminem, 50 Cent and the Game?”

“Why is it that Musicians who are from this country have to be branded "NZ MUSIC", wherever they go, whatever they do? With a giant black and white target on us so that we can be picked out in the crowd like jews with stars of david on our armbands?

If we look at all the trouble nationalism, jingoism, and patriotism has caused in the history of our species we can see that music and art can be used to consolidate power in the same way a tank or a missile can, if it's used in the wrong way. It's mis-guided to believe that we should rally around music in the way we have around sports in this country. It's just bullshit.

A recent example of this is Hayley Westenra, a “much loved kiwi artists” who received a bad review in a local rag in Christchurch. The media reaction to this bad review was that it was a personal attack (e.g NZ Hearld headline, "I get it, you don't like me: Westenra shrugs off critic"). Some even suggested that the reviewer should leave such a “successful kiwi export” alone. The reviewer was just doing his job; that is, giving his opinion. Another example is the uproar given to by Stuff music reviewing who gave a bad review to local favourites Fat Freddys Drop. These two reviewers clearly broke the rules of blanket patrotism.

This patriotical patriotism and promotion of un-critical attitudes has created an incredibly bland music scene. Considering most those NZ artists who get any reasonable exposure, it is clear that none of them have any major ‘shock value’ within the same realms of Odd Future, and that the environment is unlikely to foster any such upcoming artists.

“Shock value”, even of itself, is desirable. It’s needed in music. Consider the Prince, the Sex Pistols, NWA – these artists that were shocking in their time, they were controversial but have become culturally important. Closer to home, many of New Zealand’s greatest musical label/time, Flying Nun can recount stories of a young Chris Knox “iggying himself” by provoking audiences by cutting himself with broken glass. Odd Future’s offensive lyricism is just another example of shock value.

Additionally one must bear in mind the distinction between the singer and song. As Tyler the Creator of Odd Future elequntly advises elquently "don't do anything that I say in this song, okay? It's fuckin' fiction. If anything happens, don't fuckin' blame me, white America, fuck Bill O'Reilly."

Obviously there has to be a line, regardless of whether a singer is actually a racist/murderer/bigot/homophobe, if their lyrics incite and/or promote hatred or violence, are intended to create a reaction of hate, then mere the value of this (‘shocking’) freedom of expression should be regulated. This is the realm of hate speech. One legal definition of such speech is contains in s61 of the Human Rights Act 1993, which makes it unlawful to publish or distribute:

"threatening, abusive, or insulting...matter or words likely to excite hostility against or bring into contempt any group of persons...on the ground of the colour, race, or ethnic or national or ethnic origins of that group of persons."

Clearly anything near approaching this threshold should be stopped. One example is the performer Beenie Man who was pulled from the 2010 Big Day Out who appears closer to this definition of threatening, abusive, insulting and likely excite hostility against a grouped or persons (here on the grounds of sexual orientation rather than those grounds listed in the Human Rights Act 1993) with lines such as: "I'm dreaming of a new Jamaica, come to execute all the gays.''

In considering whether Odd Future whether cross over the line from offensive to hateful, its relevant to examine the request for the group to be pulled from Mr Bennachie who contacted Sandra Coney, chairwoman of the council's Parks and Heritage Forum. To complete the picture it should be mentioned that Auckland City Council owns Big Day Out venue Mt Smart Stadium.

“It's damaging to people, it's damaging to society. The messages in the songs are that LGBT people are immoral, evil, sick and worthless and therefore violence is an easy step for those who are already disposed towards violence. Too often gay men are targeted as objects of violence or ridicule in the streets and the perpetrators feel safe in targeting them because of the messages contained in hate music like this.''

On the flip side Big Day Out promoter Campbell Smith, seemed to fall onto the offensive rather than hateful line in saying the group was “interesting” and “provocative:”

"I don't really think it's my place or our place to tell people who they can and can't see. We try to present a broad show across all genres. They're certainly a talented act that a lot of people are interested in and want to see,"

Despite these passionate and markendly different opinions, debate around the decision (espeically during) has been very limited. My main concern is not that Odd Future were pulled, it is the lack of debate around the issue, and how the shock value of the music has mainly be ignored, or even looked down upon. As the best music blogger going around, Everett True nicely sums up the issue:

“Shock tactics have their place. It’s good that folk respond, and it’s good that folk don’t let the use of such shock tactics go unquestioned, but it’s good to have shock tactics too”

As a casual listener of Odd Future, I admit that I have enjoyed large parts of Tyler’s and Odd Future’s work.





Across a complete album other tracks become less enjoyable as the juvenile cuss words overtake any lyrical wit (e.g. see "Bitch Suck Dick: and after the beats fall down the stench in the elevator simply becomes too much to handle.

Yet I can’t help feeling that the “New Zealand Music Scene” needs that something toxicity in the water – we need which divides audiences and and changes the direction of current opinion. Whether Odd Future crosses this line of between shock and hate is debateable; but hey! let’s talk!

Shock value in mainstream New Zealand music is few and far between; it’s also very much undervalued. Shocking musical acts get attention; they divide people, they invoke passion (for or against), and, I believe, most importantly, they make being and becoming a fan a more active and rewarding experience. Mainstream music in New Zealand can and should be about more than a summer BBQ soundtrack.

Regardless of whether Odd Future are musically good or not, having groups which cause such reaction and passion could inject more interesting acts into mainstream New Zealand music. Otherwise I guess I can just wait for “The Great New Zealand Song Book Volume Two"; I’ve heard it includes an incredible waita version of Dave Dobbon’s “ Welcome Home…”

Alaister Moughan

*Postscript – Odd Future has announced an Auckland solo show.